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Ben Jones
Ben Jones, UK Lawyer
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There During my time of employment, a hobby of mine was

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Hi there
During my time of employment, a hobby of mine was earning too much money so I wanted to declare this money to the tax man so I started myself up as a business as advice taken from friends.
I did not realise I was in breach of contract with my employer which says:
"during the course of your employment, You will not, without previous consent of the Company, enter the service of, or be employed in any capacity or for any purpose whatsoever by any person, firm or Company other than this company"
"You will not, either within or outside your hours of work as defined in the schedule be engaged or interested in undertaking or carrying on any business of a similar nature to or competing with the company business" (the work I am doing is on the complete opposite end of the spectrum)
I have now submit paperwork to have the business stricken off but the employer says "Can you also please confirm that you will not personally be continuing, either directly or indirectly, any of its activities whether for profit or as a hobby."
Could I have some advice on what to do please and could I set myself up as a sole trader? Thanks
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Is this business competing with your employer's?
Customer: replied 2 years ago.
Not in any way shape or form. Completely different industries.
Customer: replied 2 years ago.
And Hi Ben, thank you for your response.
Are you wishing to continue in this business?
Customer: replied 2 years ago.
Yes I am.
The starting point is that there is a specific clause in your contract which prohibits you from setting up a business outside of your current employment with this employer. Whether it is a limited company or a sole trader, it would not really make much of a difference as you are still engaged in a business capacity in some way. However, one must also consider the enforceability of such clauses. If you are doing this entirely in your own time, without using company time or resources or affecting your performance there in any way and this business does not in any way compete with theirs, then it would be unreasonable for them to take any formal action, such as disciplining you. There is nothing stopping them from doing so but the fairness of such action could be questionable. Just be sure that you have 2 years’ service with them though as until then they are free to do anything and could even dismiss you without having to prove the fairness of their actions. However, if you have more than 2 years’ service then you are protected against unfair dismissal s they would need to justify their actions were fair and reasonable and in this case it could be difficult to prove.
So in the best case scenario you should try and get their consent and point out that you are n no way affecting their business, that it is not in competition and you are not using company time or resources – it is basically a completely unrelated private business venture. However, if you cannot get their consent then you would be at risk to some extent as they could treat this as misconduct due t breach of a specific contractual term, although as mentioned they may not find it easy to justify the fairness of any formal disciplinary action they take, especially if it goes as far as dismissal.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Thank you. Is there anything to stop me from handing in my notice now? Do I have to go forward with disciplinary action?
You can hand in your notice at any time but you would be expected to work through your notice period so if in the meantime the employer takes disciplinary action you may still be caught in it. Hope this clarifies?
Customer: replied 2 years ago.
Hi Ben,So I decided to go to the disciplinary tomorrow but can they say that I should discontinue my hobby/business if it basically is something they don't like?
If it goes against your contract then they can ask you to stop it. They can't force you but failure to adhere to which a request, assuming it is a reasonable one, could lead to disciplinary action as mentioned in my original answer.
If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Hello, I see you have read my response to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.
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Customer: replied 2 years ago.
I was dismissed anyway but thanks for your help and advice.
Customer: replied 2 years ago.
I just found out that my previous employer was the one who told my employer about my other business. I had launched an unfair dismissal case against them which also eventually included deformation of character. As part of our settlement, as well as compensation, I got a written reference from them to take to my new job and we were to close the case, not talk about it/have no contact etc. Now I have lost my job all because of this bitter person. Surely they are in breach themselves as they have gone out of their way to get me fired?
Hi sorry to hear about the dismissal. Do you have the relevant clause in the settlement agreement which deals with the obligation not to talk about each other etc?
Customer: replied 2 years ago.
In our settlement, we agreed " The parties further agree that they will not, whether directly or indirectly, make, publish or otherwise communicate any disparaging or derogatory statements, whether in writing or otherwise, concerning the other.."
The issue here is whether what they have said is derogatory or disparaging. It is not derogatory to mention something which is true. So I am not actually entirely certain that this would amount to a breach of the agreement - there is no blanket ban on discussing you and your employment, the restriction only applied to derogatory remarks about you
Customer: replied 2 years ago.
I finished employment with them 18 months ago and have had no contact. They have gone out of their way to make life difficult for me. It also says "The Respondent agrees to provide the Claimant with a reference on Company Headed paper in the terms attached, and when responding to a written or verbal request for a reference from a prospective employer, will do so in a manner which is consistent with the agreed reference provided the information so provided is compatible with the Respondent's general obligations."
I presume this was not done by responding to a formal reference request though, rather they just approached them. Thy may have had a duty to do that anyway, for example in the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading. I am not saying that you cannot take action against them but you need to be aware of the overall situation before proceeding
Customer: replied 2 years ago.
The employer gave me a good reference as per our signed agreement "... had been employed by b:web Ltd, since 3rd March 2011 until her unfortunate redundancy on 14th November 2013. Throughout her employment, we found her to be honest, professional, hardworking and highly enthusiastic. She has a warm personality and was thoroughly liked by our clients, all members of staff, as well as management. We have no hesitation in recommending her for future employment". There was no mention of a case. They sent this reference in 2014 and I did not list myself as a business until January 2015. The reference they provided was true but they have gone out of their way to mess up my employment and possible future.
Yes I understand but they have not breached the agreement in term of providing a false reference and they have not provided separate untrue information about yourself as what they have said to the new employer is entirely true as they only mentioned your business activities, which existed. So they may have gone out of their way to mention information which you would not have wanted them to share but doing so is not unlawful or in breach of the agreement
Customer: replied 2 years ago.
I see, ok thanks
You are welcome